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S. Dakota cautions NH about Marsy's Law

By SHAWNE K. WICKHAM
New Hampshire Sunday News

March 03. 2018 11:29PM



Reader Poll
  • S. Dakota warns Marsy's Law is costly, does NH need it to assure victims' rights?
  • Yes
  • 31%
  • No
  • 60%
  • Ambivalent
  • 10%
  • Total Votes: 1280


After South Dakota voters passed Marsy's Law in 2016, adding crime victims' rights to the state Constitution, the effects were immediate.

The state Department of Public Safety stopped releasing records of motor vehicle crashes. That meant drivers and insurance companies could no longer obtain the records they needed to file claims.

And county prosecutors' offices were overwhelmed by a new requirement that all victims be notified of any court proceedings, according to Mark Mickelson, Speaker of the South Dakota House of Representatives.

"Many of the counties had to hire additional staff to send out notifications to victims that had no interest in participating in the proceedings," he told the Sunday News in a phone interview on Saturday.

"The other issue that we were having was we had some law enforcement that really didn't feel they could share crime locations with the public," he said.

That's because of a provision that gives victims the right "to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim's family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records."

As New Hampshire lawmakers contemplate their own version of Marsy's Law, officials in South Dakota say there are lessons to be learned from what happened there.

Jenna Howell, staff attorney for the South Dakota Department of Public Safety, said that, before Marsy's Law, all crash reports were open records by state law.

However, she said, "Because obviously a crash report contained the information of the drivers and passengers in respective vehicles, that's obviously something that could be used to locate a victim."

"So initially after Marsy's Law passed, we stopped providing crash reports as a public record. It was in the Constitution. It would trump the statute that said those were open records."

"As you can imagine, that obviously was a difficult situation for people who needed their crash reports for insurance," Howell said.

In response to questions about the new constitutional protections, South Dakota's Attorney General, Marty Jackley, issued an official opinion in December 2016. He wrote that crime victims must "unambiguously invoke or exercise their constitutional rights to receive the protections."

And, he wrote, "It is my opinion that state and local governments may release in the course of their duties motor vehicle crash reports, street addresses where crimes have occurred, the names of victims in crime report logs and law enforcement radio traffic."

But Mickelson said some county prosecutors were not following that guidance.

So this year, he shepherded a measure through the South Dakota Legislature to fix some of what he calls the "unintended consequences" of the Marsy's Law amendment.

Mickelson said he opposed Marsy's Law when it came up in 2016. "Mostly I didn't support it because the gentleman that was funding it was not from here, never set foot in the state, and I wasn't sure he was very familiar with South Dakota victims' rights," he said.

After the problems arose, Mickelson said, he wanted to repeal Marsy's Law in the Constitution and address any issues within state law. But he said he worked out a compromise with the national Marsy's Law campaign.

The new amendment would specifically require victims to opt in to rights, including notification of court proceedings, disclosure of records and privacy. It also limits the definition of a victim and states that a victim's right to prevent disclosure of records "does not limit law enforcement from sharing information with the public for the purpose of enlisting the public's help in solving a crime."

The measure unanimously passed the South Dakota House on Feb. 21 and passed the Senate, 27-8, last Wednesday. It now goes to voters, either on the November ballot or on the June 5th primary ballot if lawmakers approve a separate bill to move the vote up.

The new amendment also gives the Legislature the authority to enact laws "to further define, implement, preserve and protect the rights guaranteed to victims." Mickelson said that's important so that if other issues arise, "at least the Legislature has some authority to come back and tweak some things."

Michael Moore is state's attorney for Beadle County in South Dakota. He was the only county prosecutor who supported Marsy's Law from the start, he said in a phone interview last week.

The attorney general made it clear that victims have to assert their rights, Moore said. "That makes perfect sense to me," he said. "That's the same thing with every other constitutional right I'm aware of. You have to exercise your right."

"If a victim requests us to do something or withhold information or not share information, we would honor that request. But we wouldn't do it until we were requested to do so by a specific victim in a specific case," he said.

In his experience, Moore said, victims don't object to information about crimes or defendants being made public; they just want to make sure defendants or their lawyers can't find and harass them.

Moore said he thinks some of the problems in his state are coming from people who opposed the law in the first place. "In my opinion, they're interpreting it to make it as difficult as possible," he said. "They have ill intent; they want it to look bad so it gets revoked or changed."

In South Dakota, constitutional amendments can be proposed either through the legislative process or through direct initiatives; Marsy's Law took the latter route. In Mickelson's view, "That was a mistake."

He said New Hampshire is in a better position, since a constitutional amendment here must go through the Legislature before it goes to voters. "The legislative process allows give and take, and we change things based on input. We make compromises," he said. "That'll be good for it."

Mickelson said he'd urge lawmakers here to learn from South Dakota's experience.

"These rights need to be upon request of the victim," he said. "And you've got to make sure that law enforcement can share information with the public so they can solve crimes."

Howell said figuring out how to implement Marsy's Law has been "a learning curve for everyone."

Her department has a new policy to handle public records. In press releases and crash reports, the department does not include any identifying information about those involved for three days after an incident.

"We do that because we feel like in the immediate aftermath of a traumatic event, individuals need an opportunity to determine whether or not they wish to invoke their Marsy's Law rights," Howell said. "So we give them that three-day window."

And if someone does invoke the right to privacy under Marsy's Law, she said, "We immediately lock the records down so as not to make a mistake."

The department reviews the case and determines whether the person is a crime victim and is thus entitled to close the records.

Howell said there have only been a dozen or so cases in which a victim has asked to seal records; most requests were from family members of someone killed in a crash.

Moore said New Hampshire lawmakers should make sure the language they adopt does what they want. "If it needs clarifying, they should try to do that before it's passed," he said. "Get those kinks worked out and get everybody on the same page."

"I would encourage people of New Hampshire to vote it in and I think that you will see a change in the system, how it works, and that victims are treated more fairly and equally," he said. "It's going to take some time but I think you'll see that happen, and it will be a better system because of it."


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